United nations hri
F. Right of self-determination
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- Navigate this page:
- (i) Indigenous people in Australia
- G. Right to life, right to physical and moral integrity, slavery, forced labour and traffic in persons
- (i) Criminalisation of genocide, war crimes and crimes against humanity
- (ii) Institutions and mechanisms to prevent torture
- (iv) Slavery, sexual servitude, trafficking
- People smuggling aggravated by exploitation
- Support for victims of trafficking
- Australia’s overseas aid program
- Minimum age for employment of children
- Compensation for historical labour injustices towards Indigenous people
F. Right of self-determination
201. The Australian Government’s general views on self-determination are set out at pages 5-11 of Australia’s Third Periodic Report under the ICCPR. 202. The Australian Government believes that individuals and groups should be consulted about decisions likely to impact on them in particular, including by giving them the opportunity to participate in the making of such decisions through the formal and informal processes of democratic government, and exercise meaningful control over their affairs. However, the Australian Government does not support an interpretation of self-determination that has the potential to undermine Australia’s territorial integrity or political sovereignty. (i) Indigenous people in Australia203. The Australian Government recognises the cultural distinctiveness and diversity of Indigenous peoples and acknowledges the importance of Indigenous peoples being closely involved in the development and implementation of policies and programs that impact on them. 204. Indigenous participation in government decision-making and management is addressed at paragraphs 181-191 above. 205. Native Title and traditional forms of economy and cultural heritage management are discussed at paragraphs 127-146 above.
G. Right to life, right to physical and moral integrity,
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206. Australia is committed to ensuring to people in Australia the right to life and physical and moral integrity, and protection from slavery, forced labour and trafficking in persons. Since 1997, the Australian Government has introduced a number of new laws and policies which enhance protection of these rights.
(i) Criminalisation of genocide, war crimes and crimes against humanity
207. The Rome Statute of the International Criminal Court (ICC) was ratified by Australia on 1 July 2002 and entered into force for Australia in September 2002. This followed the enactment in June 2002 of legislation to facilitate compliance with the Rome Statute.6 This legislation covers the offences of genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the ICC.
208. These offences have been incorporated into Division 268 of the Criminal Code Act 1995 with specific reference to torture and inhuman treatment where relevant. These offences operate prospectively from September 2002 and apply to conduct both within and outside Australia. All genocide offences attract life imprisonment. Penalties for crimes against humanity range from 17 years to life imprisonment and war crimes offences attract penalties ranging from 10 years to life imprisonment.
(ii) Institutions and mechanisms to prevent torture
209. Acts constituting torture and other cruel, inhuman or degrading treatment or punishment are a criminal offence and/or civil wrong in all Australian jurisdictions. For example, Queensland passed an offence of torture (Criminal Code section 320A) in 1997 and criminalised female genital mutilation (Criminal Code sections 323A and 323B) in 2000. Further information on the range of legislation criminalising torture and inhuman treatment is available in Australia’s most recent report under the CAT.
(iii) Sexual assault
210. The Australian Government has implemented several initiatives over recent years under the National Initiative to Combat Sexual Assault and the Partnerships Against Domestic Violence programs. These programs ended on 30 June 2005 and were replaced by the Women’s Safety Agenda. Announced in May 2005, this four year program addresses four broad themes: prevention, health, justice and services. The program aims to decrease the impacts of domestic and family violence and sexual assault on the community.
211. In Victoria, the Crimes (Sexual Offences) Act 2006 aims to reduce the further trauma experienced by children and people with a cognitive impairment by making it easier for them to give evidence in the prosecution of sexual offences. The legislation introduces fairer tests to assess the competence of young children to give evidence and allow evidence of complaints about the alleged abuse made to third parties in certain circumstances. The Victorian Government has also committed significant financial resources to support victims of sexual assault and child witnesses, providing extra prosecution resources, new female forensic nurses and more health and counselling services.
(iv) Slavery, sexual servitude, trafficking
Slavery
212. Under section 270.3 of the Criminal Code, it is an offence to possess a slave or exercise over a person any of the powers attaching to the right of ownership, to engage in slave trading, or to enter into any commercial transaction involving a slave. It is also an offence to exercise control or direction over, or to provide finance for, slave trading or a commercial transaction involving a slave. The maximum penalty for these offences is 25 years imprisonment.
Sexual servitude
213. Under section 270.6 of the Criminal Code, it is an offence for a person to cause another person to enter into or remain in sexual servitude, where the person intends to cause, or is reckless as to causing, that sexual servitude. The offence is punishable by a maximum penalty of 15 years imprisonment. Where the offence is committed against a person under 18, the maximum penalty is 20 years imprisonment.
214. Six of the eight States and Territories (NSW, Victoria, WA, SA, ACT and NT) now also have offences criminalising sexual servitude, including conducting a business involving sexual servitude. The two jurisdictions without specific sexual servitude laws have other criminal offences that could be used to prosecute incidents of trafficking in persons.
215. In 2005, Tasmania introduced the Sex Industry Offences Act 2005 which provides for an offence (among other things) where a person, for the purpose of inducing any person to provide or continue to provide sexual services in a sexual services business, intimidates, assaults, or threatens to assault any person; or threatens to cause a person to be deported.
Deceptive recruiting
216. Under section 270.7 of the Criminal Code, it is an offence for a person to deceive a second person about the fact that their employment or other engagement will involve the provision of sexual services, where the first person intends to induce that second person into an engagement to provide sexual services. This offence is punishable by a maximum penalty of seven years imprisonment. Where the offence is committed against a person under 18, the maximum penalty is nine years imprisonment.
217. Most States and Territories also have offences which target deceptive recruiting for sexual services.
People smuggling aggravated by exploitation
218. Section 73.2 of the Criminal Code, which came into force in 2002, criminalises people smuggling aggravated by exploitation where persons are smuggled into a foreign country (whether or not via Australia). Where the conduct occurs wholly outside Australia, this offence only applies to Australian citizens and residents. This offence carries a maximum penalty of 20 years imprisonment.
Trafficking in persons
219. The Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 created new and revised trafficking in persons offences in the Criminal Code. This comprehensively criminalises trafficking in persons activity, fulfilling Australia’s obligations under the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children supplementing the United Nations Convention Against Transnational Organized Crime.
Bridging Visa
220. The Australian Government has amended Australia’s migration regulations to create a new class of bridging visa. The Bridging F Visa came into effect on 1 January 2004 and allows peoples who could assist Australian authorities investigating peoples trafficking to remain in Australia for up to 30 days.
221. If a person is assessed as being able and willing to assist Australian authorities in pursuing the prosecution of a trafficking offence, a Criminal Justice Stay Visa may be granted to cover the period for which their assistance is required. Additionally, victims who, as a result of their contribution to an investigation of the prosecution of people-trafficking offenders, are deemed at risk of harm if they return to their home country may be eligible for a temporary or permanent Witness Protection (Trafficking) Visa.
Support for victims of trafficking
222. Since 1 January 2004, a comprehensive support package has been in place in Australia for victims of trafficking. Suspected victims who are granted a Bridging F Visa (described above) receive intensive support for the period of the Visa’s validity or until they wish to leave Australia, whichever occurs first. A range of services is available including $300 for the purchase of immediate essentials such as clothing and toiletries, secure temporary accommodation, living and food allowances, access to Medicare and the Pharmaceutical Benefits Scheme, and access to legal services. Victims who are subsequently granted a Criminal Justice Stay Visa can continue to receive support including Special Benefit and Rent Assistance, assistance with securing long-term accommodation (provision for bond and rent advance), $700 for the purchase of essential furniture, continuing access to the Medicare and Pharmaceutical Benefits Scheme, access to legal services and access to employment and training opportunities (English language skills, budgeting skills and vocational training).
223. The Australian Government is also implementing a re-integration assistance project for victims of trafficking who return to their country of origin, and is working together with the International Organization for Migration on this project.
Community awareness
224. The Australian Government has a community awareness strategy to prevent trafficking. The strategy targets victims of trafficking who are working in the sex industry, as well as others who are likely to come into contact with these people - for example, other sex workers, clients, brothel owners and managers, brothel regulators, migration agents, sex worker outreach organisations, and providers of sexual health services.
Law enforcement
225. In October 2003, the Australian Government established a 23-member Transnational and Trafficking Strike Team within the Australian Federal Police (AFP). The Team brings together investigators and specialist analysts to tackle people trafficking and sexual exploitation. The AFP has undertaken over 100 investigations into sexual servitude and slavery-related offences since these offences were introduced in 1999, and over 50 since 1 January 2004.
Australia’s overseas aid program
226. Australia’s international aid program provides support to help “source” countries tackle primary causes of trafficking and sexual exploitation and better assist victims. Australia supports six anti-trafficking projects in South East Asia as part of a broader package of Australian development assistance worth approximately $24 million over six years.
(v) Forced labor
Minimum age for employment of children
227. Most Australian governments have not found it necessary to further legislate for a general minimum age for employment as current law and practice is sufficient to protect children from harmful or exploitative forms of child labour. Most Australian children who work do so at weekends and during school holidays in order to supplement allowances from parents, or to help pay their education expenses. This work also provides important life skills. Australia’s sophisticated system of industrial regulation provides a safety net of minimum employment conditions, including health and safety standards.
228. Although the ACT does not legislate for a minimum age of employment, its Children and Young People Act 1999 does not permit an employer to employ a child under school leaving age (15 years) for more than 10 hours per week. In WA, the Children and Community Services Act 2004 prohibits, with limited exceptions, children under 15 years of age from being employed. In Victoria, the combined effect of the Child Employment Act 2003, the Community Services Act 1970 and the Education Act 1958 prevents children from entering into general employment before school leaving age (currently 15 years). Children, generally between the ages of 13-15 years, may engage in “light work” subject to authorisation through a child employment permit. Applications for permits are assessed individually, taking account of the suitability of the employer and any other direct supervisor, nature of the work, types of activities, and hours of work. Employment is prohibited during school hours unless a Ministerial exemption from school attendance has been obtained. The legislation limits hours that may be worked during school terms, outside school terms and starting and finishing times.
229. Legislation in all States and Territories prohibits employment of children under the school leaving age during school hours. The school leaving age is defined by law as 16 in Tasmania, WA and SA, and 15 years in all other States and Territories. From 1 January 2008, WA will make it compulsory for all children to attend school until the end of the year in which they turn 17 years. Victoria has legislated a new school leaving age of 16 years, due to come into effect by 31 December 2007.
Compensation for historical labour injustices towards Indigenous people
230. The Queensland Government is addressing injustices arising from historical controls exercised by the Queensland Government over the labour of Aboriginal and Torres Strait Islander peoples by establishing administrative processes to provide:
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Monetary compensation up to a total of approximately $40 million to Aboriginal and Torres Strait Islander peoples who worked on Government-run communities between 1975 and 1986, and who were not paid Award Wages for work that they performed, and -
Reparations payments to people who were required to work and had their wages compulsorily managed by the Queensland Government in the period prior to 1976 - $55.4 million has been allocated for this process
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